Bills Digest no. 18,
2016–17
PDF version [614KB]
Paula Pyburne
Law and Bills Digest Section
Dr Nitin Gupta
Economics Section
Dr Alex St John
Science, Technology, Environment and Resources Section
7
October 2016
Contents
History of the Bill
Purpose of the Bill
Structure of the Bill
Background
National Innovation and Science
Agenda
Innovation Australia
Committee consideration
Senate Selection of Bills Committee
Senate Standing Committee for the
Scrutiny of Bills
Policy position of non-government
parties/independents
Position of major interest groups
Financial implications
Statement of Compatibility with Human
Rights
Parliamentary Joint Committee on
Human Rights
Key issues and provisions
Establishment of Innovation and
Science Australia
Changes to the Board
New name
Updated functions
Addition of Deputy Chairperson
Streamlining Board functions
Programs relating to industry,
innovation, science and research
Creating programs
Arrangements relating to programs
Term and conditions relating to
program arrangements
Constitutional considerations
Other provisions
Direct management of the Board by the
responsible Minister
Concluding comments
Date introduced: 1
September 2016
House: House of
Representatives
Portfolio: Industry,
Innovation and Science
Commencement: On
Royal Assent
Links: The links to the Bill,
its Explanatory Memorandum and second reading speech can be found on the
Bill’s home page, or through the Australian
Parliament website.
When Bills have been passed and have received Royal Assent,
they become Acts, which can be found at the Federal Register of Legislation
website.
All hyperlinks in this Bills Digest are correct as
at October 2016.
History of the Bill
The Industry
Research and Development Amendment (Innovation and Science Australia) Bill 2016[1]
(the first Bill) was introduced into the House of Representatives on 4 May
2016. However, the first Bill lapsed at the dissolution of the 44th Parliament
on 9 May 2016.
The Industry Research and Development Amendment (Innovation
and Science Australia) Bill 2016 (the Bill) was introduced into the House of
Representatives on 1 September 2016 in equivalent terms to those of the first
Bill.
Purpose of
the Bill
The purpose of the Bill is to amend the Industry Research
and Development Act 1986[2]
(IRD Act) to change the name of the body known as Innovation Australia
to Innovation and Science Australia; and to allow the Minister to create
programs for industry, innovation, science and research and to authorise
expenditure under those programs. The Bill also contains transitional and
consequential amendments to the Income Tax
Assessment Act 1997[3],
the IRD Act, the Pooled Development
Funds Act 1992[4],
the Taxation
Administration Act 1953[5]
and the Venture
Capital Act 2002.[6]
Structure
of the Bill
The Bill has one Schedule split into two Parts:
- Part
1 of the Bill amends the IRD Act to establish Innovation and Science
Australia and to allow the Minister to create industry, innovation, science and
research programs. In addition, the Bill inserts a legislative framework to
provide legislative authority for Commonwealth spending in relation to those
programs
- Part
2 makes consequential and transitional amendments to a number of statutes in
relation to the amendments set out in Part 1.
This Bills Digest considers the amendments set out in Part
1 of the Bill only, those amendments made in Part 2 being relatively minor.
Background
National
Innovation and Science Agenda
Innovation is widely seen as a crucial imperative for
Australia as it seeks to transition away from a resources-based economy, and
prepares for the challenges and opportunities of the 21st century. The Turnbull
government has identified innovation as a strategic priority.[7]
The National Innovation and
Science Agenda (NISA)[8]
was announced in December 2015 as the comprehensive, long-term framework to
drive improvements in innovation outcomes.[9]
The NISA focuses on four key pillars:
- culture
and capital to help businesses embrace risk and incentivise early stage
investment in start ups
- collaboration,
to increase the level of engagement between businesses, universities and the
research sector to commercialise ideas and solve problems
- talent
and skills, to train Australian students for the jobs of the future and attract
the world’s most innovative talent to Australia, and
- Government
as an exemplar, to lead by example in the way Government invests in and uses
technology and data to deliver better quality services.[10]
In relation to the last of these key pillars, the NISA states:
We are getting the governance settings right, so that there
is a single body responsible for researching, planning and advising government
on the long-term strategic vision for innovation and science. We are
establishing a new independent statutory board, Innovation and Science
Australia, supported by a Chief Executive Officer accountable through the Industry
Minister to a new Innovation and Science Committee of Cabinet, chaired by the
Prime Minister. This will place innovation and science at the centre of
policy-making. [11]
According to the Minister for Industry, Innovation and
Science, Greg Hunt:
Innovation and Science Australia will help us to complete the
first wave of the National Innovation and Science Agenda, pursue a second wave
based on investment attraction and its 2030 Strategic Plan will guide our third
wave.[12]
Innovation
Australia
Innovation Australia is an independent statutory body established
under the IRD Act to assist with the administration and oversight of the
Australian Government's industry innovation and venture capital programs
delivered by AusIndustry.[13]
Both the Australian Labor Party (ALP) and the Coalition have
previously identified the need for an independent Board that can perform
coordinating, administrative and governance functions that are seen as
important for improving innovation in Australia. The creation of a new body to
‘coordinate the promotion of research and development and other economic
innovations across the Government’ was first proposed in June 2006, by the ALP.[14]
However, it was the Howard government that established Innovation Australia with
the enactment of the Tax
Laws Amendment (2007 Measures No.5) Act 2007.[15]
Innovation Australia was formed by merging the functions of the Industry
Research & Development Board and the Venture Capital Registration Board, in
order to produce a consistent approach to program delivery and to improve
effectiveness of the program.[16]
Committee
consideration
Senate
Selection of Bills Committee
The Senate Standing Committee for the Selection of Bills determined
on 15 September 2016 that the Bill not be referred to a Committee for inquiry
and report.[17]
Senate
Standing Committee for the Scrutiny of Bills
At the time of writing this Bills Digest, the Senate
Standing Committee for the Scrutiny of Bills had not considered either the
first Bill or this Bill.
Policy
position of non-government parties/independents
It has been reported that, although the ALP does not oppose
the establishment of Innovation and Science Australia per se, it considers
that appointments to the Innovation and Science Australia Board would not make
up for Coalition Government cuts to science and research.[18]
The Australian Greens (the Greens) have not opposed the
establishment of Innovation and Science Australia. However, in the lead up to
the 2016 Federal election, the Greens undertook to set up an Innovation Commissioner
to work with industry, universities, business, government agencies and
Innovation and Science Australia to advance the innovation agenda. Accordingly:
The Innovation Commissioner would also be responsible for
developing a comprehensive Innovation Strategy, including a National Social
Innovation Strategy. Without significant government policy and strategy the
impact and value of Australia’s social enterprise sector will not realise its
potential.[19]
Position of
major interest groups
The specific matters dealt with in this Bill (the creation
of Innovation and Science Australia) have attracted little commentary amongst
major interest groups. At the time of the release of the National Innovation
and Science Agenda policy statement, the Business Council of Australia welcomed
the creation of Innovation and Science Australia along with the Innovation and
Science Committee of Cabinet, saying that it would ‘provide a much needed
whole-of-system view to the highest levels of government’.[20]
The move was also welcomed by Professionals Australia, the
union representing many workers in science, technology and research:
Professionals Australia is very pleased to see that the
Liberal Government will create a new board in the Industry Department called
Innovation and Science Australia, as well as a new innovation and science
committee of cabinet. We have long called for greater STEM expertise in policy
making, and this step goes some way to achieving this.[21]
Financial
implications
The Bill itself has no financial implications, as it does
not make any alterations to appropriations or taxation.
However, the Government has indicated that it has already
allocated an additional $8.1 million over four years between 2015–16 and
2018–19 to support additional activities of Innovation and Science Australia.[22]
Statement of Compatibility with Human Rights
As required under Part 3 of the Human Rights
(Parliamentary Scrutiny) Act 2011[23]
(Cth), the Government has assessed the Bill’s compatibility with the human
rights and freedoms recognised or declared in the international instruments
listed in section 3 of that Act. The Government considers that the Bill is
compatible.[24]
Parliamentary Joint Committee on Human Rights
At the time of writing this Bills Digest, the Parliamentary
Joint Committee on Human Rights had not considered either the first Bill or
this Bill.
Key issues
and provisions
Establishment
of Innovation and Science Australia
A significant component of this Bill gives effect to the Government’s
policy intent to establish a new board, Innovation and Science Australia,
replacing the existing board known as Innovation Australia.[25]
Innovation and Science Australia assumes all of the functions of Innovation
Australia[26]
in addition to taking responsibility for ‘providing whole of government advice
on science, research and innovation matters’.[27]
This is in contrast to Innovation Australia’s current focus on ‘articulating ...
a business innovation perspective’.[28]
The Government’s intention is for Innovation and Science Australia to work
closely with the two other sources of independent advice on science and
research, being the Commonwealth Science Council and the Chief Scientist.[29]
This is consistent with the Government’s key objective of improving
collaboration between academic researchers and business.[30]
Item 1 of Part 1 of the Bill changes the long title
of the IRD Act from ‘An Act to encourage certain research and
development’ to ‘An Act relating to industry, innovation, science and research,
and for related purposes’.
Item 2 repeals and replaces the objects clause in
section 3 of the IRD Act. The effect of the amendment is that the object
of the IRD Act changes from a relatively narrow focus on promoting the
development, efficiency and international competitiveness of Australian
industry by encouraging innovation, research and development, and venture
capital, to a much broader purpose of positioning Australia as a leading
innovation nation. Under proposed section 3, the objects of the IRD
Act will expand to also include facilitating the provision of independent
strategic advice to Government regarding innovation, industry, science and
research investment; supporting collaboration in the development and delivery
of programs and authorising expenditure on programs relating to industry,
innovation science and research.[31]
Changes to
the Board
Under the NISA, the Government seeks to tighten the links between
investment and industry, innovation, science and research programs.[32]
To that end, the Bill amends Part II—Administration of the IRD Act to
reflect changes to the functions, constitution and operation of Innovation and
Science Australia as a Board.
New name
First, item 13 of Part 1 of the Bill repeals
and replaces section 6 of the IRD Act to establish Innovation Australia
under its new name of Innovation and Science Australia. The application
provision in item 39 of Part 1 of the Bill provides that a person who
was a member of Innovation Australia (the Board) immediately before the
amendment comes into effect continues as a member of Innovation and Science
Australia (the Board).
Updated
functions
Second, item 14 updates the functions of the
Board to broaden the scope of advice that it may give. The existing subsection
7(aaa) of the IRD Act is repealed and replaced by proposed paragraphs
7(aa)–7(ad) which give Innovation and Science Australia the broad
functions of providing advice to Ministers and the Secretary of the relevant
Department about science, research and innovation policy. It also provides that
the Board may commission and publish research in relation to science, research
and innovation matters.[33]
The effect is to make Innovation and Science Australia a
much broader, whole of government strategic advice and planning body for
science, research and innovation. It also provides the government with a source
of contestable advice in this area (the other sources of such advice being the
Commonwealth Science Council and the Chief Scientist).
According to the Explanatory Memorandum to the Bill:
As part of its strategic advice, Innovation and Science Australia
will undertake comprehensive audits and regular reviews of Australia's science,
research and innovation system to assess and make recommendations to align
government strategic priorities. It will also develop a long-term, 15 year
National Innovation and Science Plan to identify science, research and
innovation investment priorities and specific areas for policy and program
reform.[34]
Currently paragraph 7(d) of the IRD Act provides
that the functions of the Board are, amongst other things, any functions
specified in a direction in force under existing section 19. (That section is
repealed by item 28 in Part 1 of the Bill. Further discussion about this
is below.) Item 15 repeals and replaces paragraph 7(d) of the IRD Act,
so that it is a function of the Board to do anything incidental or conducive to
the performance of any of its stated functions.
Addition of
Deputy Chairperson
Third, item 17 of Part 1 of the Bill amends
the IRD Act to establish the position of Deputy Chairperson of the
Board, intended to be held by the Chief Scientist.[35]
The Bill provides:
- that
the Board will consist of a Chairperson, a Deputy Chairperson, a person who is
performing the duties of an office or position in the Australian public service
that has been designated by the Minister, and not less than three or more than
12 other members[36]
- that
members of the Board will be appointed by the Minister rather than the Governor
General[37]
- that
the Deputy Chairperson will preside over Board meetings in the absence of the
Chairperson[38]
- for
persons to be appointed as acting Deputy Chairperson (or the Chairperson) on a
temporary basis[39]
- that
the Board as a whole, by resolution, may delegate any or all of its functions
to the Chairperson, Deputy Chairperson, a member of the Board, a committee or a
member of staff assisting the Board who is an SES employee [40]or
acting SES employee.[41]
This last amendment is of particular benefit because
currently Innovation Australia has an active committee system which undertakes
valuable work.[42]
Streamlining
Board functions
Fourth, existing sections 19, 19A, 19B and 20 of the IRD
Act are repealed by item 28 of Part 1 of the Bill. Those sections
currently provide for the Minister to give directions to the Board to take on
additional functions or to provide advice about a matter under the Venture
Capital Act or the Pooled Development Funds Act. Proposed section
19 streamlines the types of directions which the Minister may give to the
Board. These directions include:
- conferring
an additional function under the Venture Capital Act or the Pooled
Development Funds Act[43]
and
- about
the performance of functions and exercise of powers[44]
- directions
in relation to:
- provision
of technical assessments in relation to programs activities or proposals for
programs activities[45]
- provision
of a report or advice on a matter that relates to any of the Board's functions or
powers; the operation of the IRD Act, the Pooled Development Funds
Act or the Venture Capital Act, or the operation of the
Commonwealth's income tax laws as they operate in relation to any of those
statutes[46]
or
- policies
and practices to be followed by the Board in the performance of its functions
and the exercise of its powers.[47]
Importantly the directions given by the Minister under proposed
section 19 are notifiable instruments and are, therefore, not subject to
Parliamentary scrutiny. Nor are they subject to automatic repeal 10 years after
registration.[48]
Programs
relating to industry, innovation, science and research
Creating
programs
The Bill provides a framework for the Minister to create new
programs by legislative instrument under the IRD Act.
Item 34 of Part 1 of the Bill inserts proposed Part
IV—Programs relating to industry, innovation, science and research into the
IRD Act, which would allow the Minister to prescribe, by legislative
instrument, ‘programs in relation to industry, innovation, science or
research’, which may involve the expenditure of Commonwealth money.[49]
The Constitution[50]
divides the legislative authority in Australia between the Federal and State
governments. The Federal government is responsible for making laws about the
matters allocated to it in the Constitution—primarily in sections 51 and
52—although there are other relevant sections. Relevant to this Bills Digest
section 96 of the Constitution provides that the Parliament may grant
financial assistance to any state on such terms and conditions as the
Parliament thinks fit.
Within proposed Part IV, proposed section 33 empowers
the Minister to prescribe programs in relation to industry, innovation, science
or research, including in relation to the expenditure of Commonwealth money
under such programs by legislative instrument.[51]
However, the Minister’s power is limited in that a program may only be
prescribed to the extent that it is with respect to one or more legislative
powers of the Parliament as set out above.[52]
For this reason, the legislative instrument must specify the legislative
power or powers of the Parliament in respect of which the instrument is made.[53]
Arrangements
relating to programs
Proposed section 34 of the IRD Act provides
that the Commonwealth may make, vary or administer an arrangement to carry out
the programs authorised under proposed section 33 (including the power to spend
money under those programs).[54]
For the purposes of this section the term arrangement includes a
contract, agreement or deed. The power of the Commonwealth may be exercised by
the Minister or by the accountable authority of a non-corporate Commonwealth
entity.[55]
Although the Bill does not explicitly say, it would be
reasonable to suggest that the power to administer industry, innovation,
science and research programs would be conferred on Innovation and Science
Australia under proposed section 36 of the IRD Act (see comments
below).
Term and
conditions relating to program arrangements
Proposed section 35 of the IRD Act requires
that the terms and conditions on which money may be payable by the Commonwealth
under the arrangement must first, be set out in a written
agreement between the Commonwealth and the other party, whether that party is a
State, Territory or corporation—and second, that those terms and conditions
must be complied with. Where the other party is a corporation, the terms and
conditions of the arrangement must provide the circumstances in
which the corporation must repay amounts to the Commonwealth.
Although the Bill does not explicitly say, it would be
reasonable to suggest that the Innovation and Science Australia could be a
party to an agreement on behalf of the Minister under proposed section 36 of
the IRD Act.[56]
Proposed section 36 of the IRD Act allows a
Minister to delegate his, or her, powers under proposed sections 34 and 35 to
an official of a non-corporate Commonwealth entity—such as Innovation and
Science Australia.[57]
Similarly, an accountable authority of a non-corporate Commonwealth entity may
delegate any or all of his, or her, powers under section 34 or 35 to an
official of any non-corporate Commonwealth entity.[58]
Constitutional
considerations
The proposed Part IV of the IRD Act gives
the Minister broad discretion to establish programs—provided that they are in
relation to industry, innovation, science or research and they are made with
respect to one of the legislative powers available to the Commonwealth under
the Constitution.
The construction of the Bill (and the inclusion in the Explanatory
Memorandum that the Attorney-General’s Department—including the Australian
Government Solicitor, Office of Constitutional Law and the Office of
International Law have been consulted on the relevant provisions of the Bill)
serves to highlight a broader issue with the Commonwealth’s legislative
authority to provide funding to science and research in general.
The Constitution provides for several specific
areas in which the Commonwealth has an explicit legislative power relating to
science and research; these relate to astronomical and meteorological
observations,[59]
fisheries in Australian waters beyond territorial limits,[60]
census and statistics,[61]
weights and measures,[62]
and benefits to students.[63]
However, except for benefits to students, these are narrow areas of science and
research, and it would be difficult to argue that they comprise a more general
power to legislate for science and research.
However, section 61 of the Constitution provides
that the executive power of the Commonwealth extends to the execution and
maintenance of the Constitution and the laws of the Commonwealth.
The executive power of the Commonwealth has been
interpreted widely and may extend beyond the specific legislative powers listed
in the Constitution. The Commonwealth derives additional power from the Constitution
due to its status as a national polity.[64]
Justice Brennan noted in Davis v The Commonwealth:
There is no reason to restrict the executive power of the
Commonwealth to matters within the heads of legislative power. So cramped a construction
of the power would deny to the Australian people many of the symbols of
nationhood - a flag or anthem, e.g. - or the benefit of any national
initiatives in science, literature and the arts.[65]
The case of Davis v The Commonwealth concerned the
validity of the Australian Bicentennial Authority, which was established as a
company registered in the Australian Capital Territory. The High Court held
that the commemoration of the Bicentenary is a matter falling within the
province of the Commonwealth in its capacity as the national government. It
further held that the executive power ‘extends to the incorporation of a
company as a means for carrying out and implementing a plan or programme for
the commemoration.[66]
Their Honours did, however, indicate some restrictions on
the extent of this ‘national’ power. In their joint judgment, Chief Justice
Mason and Justices Deane and Gaudron, stated:
... s. 61 confers on the Commonwealth all the prerogative
powers of the Crown except those that are necessarily exercisable by the States
under the allocation of responsibilities made by the Constitution and those
denied by the Constitution itself. Thus the existence of Commonwealth executive
power in areas beyond the express grants of legislative power will ordinarily
be clearest where Commonwealth executive or legislative action involves no real
competition with State executive or legislative competence.[67]
The establishment of the CSIRO is supported by this
implied ‘nationhood’ power—that the executive powers of the Commonwealth
include ‘activities peculiarly adapted to the government of a nation and which
cannot otherwise be carried on for the benefit of the nation’,[68]
which included the pursuit of science and research. However, whether this
implied power remains a sufficient constitutional basis for the existence of
Commonwealth programs of science and research is uncertain. More recent opinion
has cast doubt on the existence of the nationhood power, and whether it is
applicable or necessary in the case of science and research:
The most difficult category is the fifth category, of funding
for bodies such as national museums, art galleries, the Commonwealth Scientific
and Industrial Research Organisation (‘CSIRO’) and other national institutions.
Scientific research, the arts and culture can all be funded and supported at
the state level, either directly by the states or through s.96 grants from the
Commonwealth, so there is no real necessity for them to operate at the
Commonwealth level. Nor is it readily apparent why a national scientific body
produces any greater value to the nation than a state scientific body, such as
one attached to a state hospital or university.
However, it is arguable that such Commonwealth bodies are
supported by the prerogative power to establish, fund and regulate the public
service and the departments and agencies by which it is organised. Just as the
Commonwealth government can establish a Department of Education, even though it
has no legislative power with respect to education, it may also be able to
establish and run other public sector bodies such as the CSIRO, art galleries,
sports institutes and the like. This does not give the Commonwealth Parliament
power to make laws with respect to education, scientific research, art or
sport. Rather, the Commonwealth could only rely on its executive power to
establish such public sector bodies in order to enact laws incidental to the
execution of this power — being laws with respect to the management, funding
and operation of such bodies.[69]
The ability to prescribe these programs provides authority
for the Commonwealth to spend money on these programs, although such money must
first be appropriated in separate legislation. However, the power to spend such
money on prescribed programs requires that the program is supported by a
legislative power of the Parliament.[70]
The legal authority of the Commonwealth to spend money in areas that are not
explicitly supported by a constitutional head of power remains a source of
considerable uncertainty.[71]
Other provisions
Direct
management of the Board by the responsible Minister
Under the existing IRD Act, appointments,
resignations and other administrative matters relating to the Innovation
Australia board are directed to the Governor-General.[72]
The Bill deletes existing references in the IRD Act to the
Governor-General and replaces them with references to the responsible Minister.
This does not represent a substantial change, as convention requires the
Governor-General to act only on the advice of Ministers.[73]
Allowing the responsible Minister to appoint and manage the Innovation and
Science Australia Board directly, removes the need for the Minister to formally
advise the Governor-General, and so has the effect of removing a level of
administration from the process.
Item 36 of Part 1 of the
Bill repeals and replaces section 46 of the IRD Act to simplify the
requirement that the Board submit an annual report to the Parliament via the
Minister.
Concluding
comments
The Bill makes changes to the IRD Act to allow Innovation and
Science Australia, through the Minister, to become a whole-of-government
advisory and coordination body for science, research and innovation. This could
serve to strengthen science, research and innovation outcomes for Australia. However,
significant questions regarding the constitutional basis for Commonwealth
involvement in science and research more generally remain unresolved.
[1]. Parliament
of Australia, ‘Industry
Research and Development Amendment (Innovation and Science Australia) Bill 2016
homepage’, Australian Parliament website.
[2]. Industry Research
and Development Act 1986.
[3]. Income Tax
Assessment Act 1997.
[4]. Pooled Development
Funds Act 1992.
[5]. Taxation
Administration Act 1953.
[6]. Venture Capital Act
2002.
[7]. See,
for instance, Liberal Party of Australia and the National's, The
Coalition's policy to support innovative new businesses and jobs,
Coalition policy document, Election 2016.
[8]. Australian
Government, ‘National
Innovation and Science Agenda’, National Innovation and Science Agenda
(NISA) website.
[9]. C
Pyne (Minister for Industry, Innovation and Science), Agenda
to transform the Australian economy, media release,
7 December 2015.
[10]. M
Turnbull (Prime Minister) and C Pyne (Minister for Industry, Innovation and
Science), National
innovation and science agenda, joint media release, 7 December 2015.
[11]. Department
of the Prime Minister and Cabinet (PM&C), National
Innovation and Science Agenda – welcome to the ideas boom, Commonwealth
of Australia, PM&C, 7 December 2015, p. 15.
[12]. G
Hunt (Minister for Industry, Innovation and Science), ‘Second
reading speech: Industry Research and Development Amendment (Innovation and
Science Australia) Bill 2016’, House of Representatives, Debates,
1 September 2016, p. 246.
[13]. Department
of Industry, Innovation and Science (DIIS), ‘AusIndustry
programme summary’, Business.gov.au website, 27 September 2016; DIIS, ‘Innovation
Australia’, DIIS website.
[14]. C
Bowen (Member for Prospect), Cascading
tax concessions and building networks the key to an innovating Australia: Labor
report, media release, 5 June 2006.
[15]. P
Dutton (Minister for Revenue and Assistant Treasurer), Continuing
to improve Australia’s tax system, media release,
16 August 2016; see also L Neilson, Tax
Laws Amendment (2007 Measures No. 5) Bill 2007, Bills digest, 42,
2007–08, Parliamentary Library, Canberra, 2007; Tax Laws Amendment
(2007 Measures No.5) Act 2007.
[16]. Revised
Explanatory
Memorandum, Tax Laws Amendment (2007 Measures No. 5) Bill 2007, p. 269.
[17]. Senate
Standing Committee for the Selection of Bills, Report,
6, 2016, The Senate, Canberra, 15 September 2016.
[18]. R
Baxendale, ‘Innovation
board unveiled’, The Australian, 16 March 2016, p. 6.
[19]. The
Australian Greens (the Greens), Innovation
nation - the bridge to the new economy, the Greens policy document,
Election 2016.
[20]. Business
Council of Australia, Response
to National Innovation and Science Agenda, media release, 7 December
2015.
[21]. Professionals
Australia, Innovation
in Australia, Professionals Australia, Melbourne, December 2015, p. 8.
[22]. Explanatory
Memorandum, Industry Research and Development Amendment (Innovation and
Science Australia) Bill 2016.
[23]. Human Rights
(Parliamentary Scrutiny) Act 2011.
[24]. The
Statement of Compatibility with Human Rights can be found at page 5 of the Explanatory
Memorandum to the Bill.
[25]. Australian
Government, ‘Innovation
and Science Australia’, National Innovation and Science Agenda website;
Innovation Australia is established as a board by section 6 of the IRD Act.
In addition existing section 4 defines the term Board as meaning
Innovation Australia. Item 5 of Part 1 of the Bill amends the definition
of the term Board to mean Innovation and Science Australia.
[26]. IRD
Act, section 3.
[27]. Explanatory
Memorandum, Industry Research and Development Amendment (Innovation and
Science Australia) Bill 2016, paragraph 4.
[28]. DIIS,
‘Innovation
Australia: advice to Government’, DIIS website.
[29]. Australian
Government, ‘Innovation and Science Australia’, op. cit.
[30]. PM&C,
National Innovation and Science Agenda – welcome to the ideas boom,
op. cit., p. 10.
[31]. IRD
Act, proposed section 3 inserted by item 2 in Part 1 of the
Bill.
[32]. G
Hunt (Minister for Industry, Innovation and Science), ‘Second reading speech:
Industry Research and Development Amendment (Innovation and Science Australia)
Bill 2016’, op, cit., p. 426.
[33]. IRD
Act, proposed paragraph7(ad).
[34]. Explanatory
Memorandum, Industry Research and Development Amendment (Innovation and Science
Australia) Bill 2016, op. cit., paragraph 4.
[35]. G
Hunt (Minister for Industry, Innovation and Science), ‘Second reading speech:
Industry Research and Development Amendment (Innovation and Science Australia)
Bill 2016’, op, cit., p. 426.
[36]. IRD
Act, paragraph 9(1)(a), proposed paragraph 9(1)(aa), paragraph
9(1)(b) and proposed paragraph 9(1)(c).
[37]. IRD
Act, paragraph 9(1)(a), proposed subsection 9(2), inserted by item
19 in Part 1 of the Bill.
[38]. IRD
Act, proposed subsection 18(4), inserted by item 27 in Part 1
of the Bill.
[39]. IRD
Act, proposed subsection 17(1A), inserted by item 26 in Part
1 of the Bill.
[40]. Section
2B of the Acts
Interpretation Act 1901 provides that the terms SES employee
and acting SES employee have the same meaning as in the Public Service Act
1999.
[41]. IRD
Act, proposed subsection 21(1), inserted by item 29 in Part 1
of the Bill.
[42]. DIIS,
‘Innovation
Australia: committees’, DIIS website.
[43]. IRD
Act, proposed subsection 19(1).
[44]. IRD
Act, proposed subsection 19(2).
[45]. IRD
Act, proposed paragraph 19(3)(a).
[46]. IRD
Act, proposed paragraph 19(3)(b).
[47]. IRD
Act, proposed paragraph 19(3)(c).
[48]. Legislation Act
2003, section 7.
[49]. IRD
Act, proposed subsection 33(1).
[50]. Commonwealth of
Australia Constitution Act.
[51]. A
legislative instrument is subject to disallowance by the Parliament under
section 42 of the Legislation
Act 2003.
[52]. IRD
Act, proposed subsection 33(2).
[53]. IRD
Act, proposed subsection 33(3).
[54]. IRD
Act, proposed subsection 34(1).
[55]. Under
sections 10 and 11 of the Public Governance,
Performance and Accountability Act 2013, a non-corporate
Commonwealth entity is a body that is legally and financially a part of
the Commonwealth (such as a Department of State). Section 12 of that Act
provides that an accountable authority is typically the
administrative head of such an entity—for example, the Secretary of a
Department or Chief Executive of a portfolio agency.
[56]. See
also IRD Act, proposed subsection 35(4).
[57]. IRD
Act, proposed subsection 36(1).
[58]. IRD
Act, proposed subsection 36(3).
[59]. Ibid.,
s.51(viii).
[60]. Ibid.,
s.51(x).
[61]. Ibid.,
s.51(xi).
[62]. Ibid.,
s.51(xv).
[63]. Ibid.,
s.51(xxiiiA).
[64]. Victoria
v The Commonwealth and Hayden (the AAP Case) (1975) 134 CLR 338, pp. 361–362, [1975] HCA 52.
[65]. Davis
v The Commonwealth (1988) 166 CLR 79, p. 111, [1988] HCA 63.
[66]. Ibid.,
per Mason CJ, Deane and Gaudron JJ at paragraph 9.
[67]. Ibid.,
at paragraph 14.
[68]. Victoria
v The Commonwealth and Hayden (1975) op. cit., pp. 361–362, quoted in M
Spry, The
executive power of the Commonwealth: its scope and limits, Research
paper, 28, 1995–96, Department of the Parliamentary Library, Canberra, 20 May
1996.
[69]. A
Twomey, ‘Pushing
the boundaries of executive power – Pape, the prerogative and nationhood powers’,
Melbourne University Law Review, 34(1), 2010, pp. 313–343.
[70]. For
a more detailed discussion of the spending vs appropriation powers of the
Commonwealth, see M Hogg and C Lawson, ‘The
watershed for Commonwealth appropriation and spending after Pape and Williams?’,
Australian Journal of Administrative Law, 21(3), May 2014, pp. 145–155.
[71]. See
D Weight, ‘Commonwealth expenditure: legality and scrutiny’, Briefing
book – key issues for the 44th Parliament, Parliamentary Library,
Canberra, 2013, pp. 22–23.
[72]. Schedule
1, items 19, 22 and 24.
[73]. See
‘Governor-General's role’,
Governor-General of the Commonwealth of Australia website, last updated 6
April 2016.
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